(Being an appeal against the conviction and sentence by Hon. O.O Koranje (RM) in Mariakani SPM (SO) Case No. E016 of 2022)
1. The appellant herein, James Charo Msinda was charged before the Senor Principal Magistrate’s Court, Mariakani with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on 1 April 2022 at Tabora village in Mariakani location, Kaloleni Sub-County, Kilifi County within the coast region he intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of H.N.S a child of 13 years.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on 1 April 2022 at Tabora village, Mariakani location, Kaloleni Sub-County, Kilifi County within the coast region he intentionally and unlawfully touched the vagina of H.N.S a child of 13 years with his hands.
3. The appellant denied the charges prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1, the complainant H.N.S testified that she was at home on 1 st April 2022. At around 1600 hours while heading to the toilet outside their house but near the appellant’s house, she met the appellant who took her by hand, her to his house, undressed her after warning her not to scream and caused his penis to penetrate her vagina. He then told her to go home and shower. PW2, Dama Katana her mother, came back at around 6.00 pm, found the complainant bleeding having tied two lessos while heading to shower. When asked by her mother, she told her that she had began her menses prompting PW2 to go purchase some sanitary pads for her.
4. PW1 continued to bleed profusely prompting PW2 to call her father, PW3 Samuel Nyangau to rush her to hospital. The three went to Mariakani Sub County hospital where the complainant was given injections and discharged. Back home, she continued bleeding and upon probing by PW2, she confessed that the appellant had raped her. Based on this information, PW2 and PW3 took her back to the hospital where examinations conducted confirmed that she has suffered a severe tear on her vagina and was still bleeding. The medical attendant’s concluded that she had suffered a severe tear on the vagina consistent with defilement, performed vagina repair surgery and admitted her for three (3) days. PW5 Mwangolo Chigulu a senior clinician at the hospital produced a P3 Form (exhibit 13), PRCF (exhibit 12), treatment notes (exhibit 14) discharge summary (exhibit 11) as evidence before the court.
5. On 2 April 2022 while PW1 was undergoing treatment, PW3, the complainant ‘s father reported the incident to Mariakani police station whereupon PW4, PC Denis Yeri went to scene of crime, conducted investigations, recovered bloody clothing and sheets from the complainant’s home which were produced in evidence before the trial court as exhibits. He thereafter apprehended the appellant who was identified by PW3 after being informed the appellant was a neighbour of the complainant and charged him with the offence after confirming the complainant was a child through her health card produced as exhibit 1.
6. The appellant was placed on his defence where he elected to give a sworn testimony as well as call one witness, DW2. He denied the charges and testified that on 1 April 2022, he was in the company of Musili Mwema DW2 and that when the complainant , who used to go to his house to watch television , went to his house at around 5pm, she found him in the company of DW2. He further testified that at no point was he left alone with the complainant on the material day.
7. DW2’s evidence was that on the material day he was with the appellant from 0900 am until 5pm when they both left to go to the market to take coffee after which they went back to the appellant’s house at 10pm and he left. He also testified that on the material day, the complainant never went to the appellant’s house at any time. He concluded that the allegations were false and the case was fabricated implicate the appellant.
8. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted him and sentencing him to 8 years imprisonment. Aggrieved, the appellant filed the present appeal where he raised the following grounds:
i. The trial court erred in both law and fact by conviction the appellant despite the fact that the prosecution had not proved its case beyond reasonable doubt.
ii. The trial court erred in both fact and law by relying on the health clinic card as evidence of age despite the document lacking credibility.
iii. The trial court erred in both fact and law by rejecting the defence of alibi without cogent reason.
iv. The trial court erred in both law and fact by dismissing the appellant’s defence and submissions.
v. The trial court erred in both law and fact by issuing a sentence that is harsh and excessive.
9. The respondent opposed the appeal and filed a notice of cross appeal dated 12 May 2026 in which it contended that the sentence of 8 years imprisonment imposed by the trial court should be reversed and enhanced to 20 years imprisonment.
10. At the hearing of the appeal, both parties filed written submissions which they relied on. The appellant was represented by Mr Jimmy Kiseu learned counsel while the respondent was represented by Miss Ngina Mutua learned counsel.
11. The appellant submitted that the essential elements constituting the offence of defilement were set out in the case of George Opondo vs Republic (2016) eKLR being proof of age, penetration and positive identification of the appellant as the perpetrator. On age, it was submitted on behalf of the appellant that the trial court erred by placing reliance of the health card as proof of age. That the card indicates the mother as Cecilia Nyangau whereas PW2 is called Dana Katana. It was further contended that the prosecution ought to have produced the appellant birth certificate being the primary document to prove age. Reliance was placed in the case of Edwin Nyambogo Onsongo vs Republic (2016) eKLR in support thereof.
12. On identification, the appellant submitted that the trial court erred by relying on inconsistent and shaky testimony of the complainant. It was argued that the complainant did not mention that she was threatened by the appellant to advance the narrative of menses in relation to her bleeding. It was contended that she was threatened by her to advance that argument. It was also contented that the trial court did not satisfy itself that Section 124 of the Evidence Act was complied with before placing reliance of the complainant’s testimony. The case of Wayu Omar Dololo vs Republic (2014) eKLR was cited in support.
13. On penetration, it was submitted that the clinical officer, PW5 admitted that he was not the author of the treatment notes,did not attend to the complainant or indicate when the incident occurred. That the finding of a missing hymen cannot be proof of defilement and that the trial court erred in relying on the medical evidence as proof of penetration.He contented that the prosecution had not proved its case beyond reasonable doubt and urged the court to quash the conviction and sentence.
14. The respondent opposed the appeal and submitted that the first appellate court has a duty to re-evaluate and examine the evidence so as to arrive at its own conclusion on whether or not to support the findings of the trial court. The cases of Okeno Vs Republic [1972] EA 32, O iruri Mose Vs Republic (2013) eKLR were cited in support thereof.
15. It was argued that there were no discrepancies in the evidence adduced by all five prosecution witnesses who gave cogent, consistent and corroborative evidence that was overwhelming against the appellant.
16. It was further submitted that all ingredients of the offence were duly proved with age being proved by the child health card (exhibit 1) which showed that the complainant was 13 years old, penetration was proved by the complainant’s evidence and corroborated by PW5 evidence as well as the P3 form, PRC form, discharge summary and treatment notes (exhibits 13,12,13 and 14 respectively). As regards identity of the perpetrator, it was submitted that PW1 recognized and positively identified the appellant as the perpetrator. Anjononi & another vs Republic (1980) KLR 59 was cited to buttress the point.
17. On the defence of alibi, it was submitted that the trial court duly considered it and found it to lack credibility due to the fact that it was raised at the defence stage, was not substantiated and could not dislodge the overwhelming and watertight evidence against the appellant. This court was urged to find uphold the conviction and dismiss the appeal.
18. The respondent argued the cross appeal where it contended that section 8 (3) of the Sexual Offences Act prescribed a mandatory minimum sentence of 20 years in cases where the victim is a child between age 12 to 15 years. That the victim in this case was 13 years and the sentence of 8 years imposed by the trial court was unlawful. Reliance was placed on Supreme court case of Francis Muruatetu & Another Vs Republic; Katiba Institute & 5 Others (Amicus Curiae) (2021) eKLR where the court held that the decision in Muruatetu did not invalidate mandatory sentences or minimum sentences in the Penal Code , the Sexual Offences Act or any other statute.
19. It was submitted that this court has power to increase the sentence by dint of Section 354 (3) (b) of the Criminal Procedure Code . The respondent urged the court to set aside the sentence of 8 years imprisonment and substitute it with a sentence of 20 years imprisonment. The appellant did not file any submissions against the cross appeal despite notice.
Analysis and determination
20. This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno Vs Republic [1972] EA 32, O iruri Mose Vs Republic (2013) eKLR.
21. The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
22. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(2)……………
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
23. The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic , Criminal Appeal No. 72 of 2013, George Opondo Olunga Vs Republic (2016) eKLR.
24. Having considered the record of proceedings before the trial court, judgement by the trial court, petition of appeal, notice of cross appeal by the respondent, the parties rival submissions the court narrows down the issues for determination are as follows: -
i. Whether there was proof of penetration.
ii. Whether there was proof of age of the victim.
iii. Whether there was positive identification of the perpetrator.
iv. Whether the sentence should be enhanced.
Whether there was proof of penetration
25. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person .
26. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina of the victim, H.K.N.
27. PW1’s testified that she was at home on 1 April 2022 when at around 1600 hours while heading to the toilet which was outside their house but near the appellant’s house, she met the appellant who led her by hand to his house, undressed her after warning her not to scream and caused his penis to penetrate her vagina. Afterwards, s he bled profusely and was taken to Mariakani Sub-County hospital by PW2 and PW3 where she was treated and discharged but continued bleeding. She later confessed to PW2 that she had been defiled by the appellant who threatened her not to scream. Medical examinations and tests conducted on the same day at night confirmed that she had suffered a severe tear of her vagina leading to the conclusion that she had been defiled.
28. PW5 testified that PW1 went to the hospital on 1 April 2022 after experiencing heavy bleeding and her clothes were wet with blood. Re-examination established that there were blood clothes on the vagina, active bleeding, vaginal tear at 6 o’clock leading to a conclusion that the victim was defiled. He produced the P3 Form, Post Rape Care Form, discharge summary and treatment notes as exhibits 13, 12, 11 and 14 respectively to support his findings . The blood socked clothes worn by the c omplainant were also produced by PW4 as exhibit 2 to 10.
29. PW1 testimony was consistent, cogent and corroborated by PW2, PW3 and as well as medical evidence produced by PW5. The exhibits referred to above provided conclusive evidence of penetration which went beyond the finding that the hymen was broken.
30. The prosecution witnesses provided a consistent , clear and concise chronology of event that began from 4pm on the material day when incident started, 6pm when PW2 found PW1 bleeding, 11 pm when PW1 was re-examined at Mariakani hospital culminating in her admission for three (3) days. The appellant admitted that PW1 went to his house on the material day at 5pm giving further credence to the prosecution evidence.
31. The appellant challenged the evidence of PW5 as set out in paragraph 13 abov e. The record shows that the appellant represented by Mr kiseu learned counsel, did not object to PW5 testifying or challenged the production of any of the exhibits, which deprived the witness an opportunity to lay the basis for his testimony and production of the exhibits. The court finds that the exhibits were duly produced pursuant to Section 77 of the Evidence Act , the appellant's contention on this point lacks merit and that penetration as an ingredient was proved beyond reasonable doubt.
Whether there was proof of age of the victim
32. The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau Vs Republic (Criminal Appeal E003 of 2024 [2025] KEHC 42 (KLR).
33. Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi Vs Republic Criminal Appeal No. 21 Of 2015 [2017].
34. PW1, PW2 and PW3 testified that the complainant was 13 years old. PW2 produced the Child Health Card of PW1 which shows that she was born on 4 July 2008 meaning she was 13 years at 1 April 2022 when the offence was committed. However, the appellant challenged the authenticity of the Child Health Card (exhibit 1) on grounds that it bears different name as that of the mother PW2.
35. The court has examined exhibit 1 and finds that it bears the complainant’s name as well as the second name of the father, PW3. The court finds that despite the variance, the exhibit is authentic as it bears the name of PW1. Besides, the evidence of PW1, PW2 and PW3 even without exhibit 1, is sufficient to prove the age of the complainant. As pointed out in Thomas Mwambu Wenyi Vs Republic (Supra) age can be proved in various ways including the victim’s parents testimony such as PW2’s, victim’s testimony or even through general observation. It is not confined to birth certificate or child health card. The court is satisfied that the age of the complainant was proved beyond reasonable doubt.
Whether there was positive identification of the perpetrator
36. PW1 identified the appellant as the person who defiled her. He was well known to her as he was the caretaker of the plot where the complainant lived. The appellant also confirmed knowing the complainant who usually goes to watch television in his house. He further testified that on the material day, the complainant went to his house at 5pm. PW4 confirmed that the appellant was arrested at the plot where the crime is said to have occurred in his house.
37. The court of appeal in the case of Anjononi & another vs R epublic (1980) KLR 59 , held that recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another. PW1 clearly recognized and identified the appellant as the assailant and perpetrator of the offence.
38. The appellant in his petition of appeal raised the defence of alibi contending that the trial court erred by rejecting the defence of alibi without cogent reason. No submissions were made on this point. However, t he appellant in his defence stated that he was with DW2 his house on the material day including 5pm when the complainant went to his house but denied being alone with her at any time. DW2 on the other hand testified that he was with the appellant from 9 am until 5pm when he left with the appellant for the market where they both stayed until 10pm.
39. The court of appeal in Erick Otieno Meda vs R (2019) eKLR had this to say on the defence of alibi raised by the accused persons;
a) An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.
b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.
d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.
40. The record shows that the appellant did not raise the defence of alibi at any stage before he was placed on the defence. This denied the prosecution witnesses an opportunity to rebut it. Secondly, there was material contradiction in the evidence by the appellant who testified that the complainant was at his house at 5pm whereas DW2 was categorical that the complainant never went to the appellant’s house. He also did not mention that there were two other people in the house at 5pm, that is, Elena and Pamela whom the appellant said were present when the complainant visited. The material contradictions lead the court to a conclusion that neither of the two defence witnesses is credible.
41. The prosecution presented a strong case that leaves no doubt that the appellant is guilty as charged. The evidence adduced against appellant was cogent, consistent and corroborative and the court finds that the prosecution proved its case beyond reasonable doubt. The conviction by the trial court is thus upheld.
Whether the sentence should be enhanced
42. Turning to the sentence, the respondent filed a notice of cross appeal where it was contended that the punishment of 8 years imprisonment was illegal and should be enhanced to 20 years imprisonment in view of the provisions of Section 8 (3) of the Sexual Offence Act.
43. Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some material factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” The sentence by the trial court was lawful and this court finds no reason to interfere with it.
44. An appellate court will only interfere with a sentence if it is established that the trial court overlooked some material factors or took into account some wrong material or was based on a wrong principle. The trial court held as follows concerning the sentence;
“Upon considering the matters in mitigation as well as the Victim Impact Assessment Report stated by the Probation Officer in open court. I have considered the aggravating factors herein. The victim was a minor aged 13 years 9 months old at the time the offence took place. I have also noted the Victim Impact Assessment which has stated that the victim has been affected by the ordeal and she remains withdrawn.
The minimum sentence provided by Section 8 (3) of the Sexual Offences Act is 20 years imprisonment. Considering the severity of the offence and further considering the latest Court of Appeal decision in Criminal Appeal No. 22 of 2018 where the learned Judges of Appeal stated that “we come to the considered conclusion that life imprisonment in Kenya dose not mean the natural life of the convict and we instead hold that life imprisonment translates to 30 years imprisonment and further considering other Judicial decisions of the Superior Court which recognize that minimum sentences take away judicial discretion”, a minimum sentence of 20 years in this case would come close to life sentence as stated. I have further considered that the accused is a first offender and I hereby sentence him to 8 years imprisonment”.
45. There is no doubt that the trial court proceeded on a wrong principle of the law on the subject matter. Mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Othrs (2021) eKLR and Supreme Court of Kenya in Petition No. E018 of 2013 R vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) where the Supreme Court held that mandatory minimum sentences under the Penal Code, Sexual Offences Act or any other law are lawful.
46. The trial court erred and misdirected itself when it wrongly assumed discretion to award a sentence below the mandatory minimum of 20 years. The discretion on section 8 (3) of the said Act would only relate to sentences above 20 years.
47. Section 354 (3) (b) of the Criminal Procedure Code empowers the High Court in an appeal against the sentence , to increase or reduce the sentence or alter the nature of the sentence. The respondent sought enhancement of the sentence through the cross appeal dated 12 May 2026. The court finds the sentence by the trial court of 8 years imprisonment unlawful.
48. The upshot is that the appeal against conviction is dismissed and the conviction by the trial court upheld. The cross appeal by the respondent is allowed. The sentence of 8 years imprisonment is set aside and substituted with a sentence of 20 years imprisonment to run from the date of conviction by the trial court.
Dated, signed and delivered virtually at Nairobi this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. The appellant herein, James Charo Msinda was charged before the Senor Principal Magistrate’s Court, Mariakani with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on 1 April 2022 at Tabora village in Mariakani location, Kaloleni Sub-County, Kilifi County within the coast region he intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of H.N.S a child of 13 years.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on 1 April 2022 at Tabora village, Mariakani location, Kaloleni Sub-County, Kilifi County within the coast region he intentionally and unlawfully touched the vagina of H.N.S a child of 13 years with his hands.
3. The appellant denied the charges prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1, the complainant H.N.S testified that she was at home on 1 st April 2022. At around 1600 hours while heading to the toilet outside their house but near the appellant’s house, she met the appellant who took her by hand, her to his house, undressed her after warning her not to scream and caused his penis to penetrate her vagina. He then told her to go home and shower. PW2, Dama Katana her mother, came back at around 6.00 pm, found the complainant bleeding having tied two lessos while heading to shower. When asked by her mother, she told her that she had began her menses prompting PW2 to go purchase some sanitary pads for her.
4. PW1 continued to bleed profusely prompting PW2 to call her father, PW3 Samuel Nyangau to rush her to hospital. The three went to Mariakani Sub County hospital where the complainant was given injections and discharged. Back home, she continued bleeding and upon probing by PW2, she confessed that the appellant had raped her. Based on this information, PW2 and PW3 took her back to the hospital where examinations conducted confirmed that she has suffered a severe tear on her vagina and was still bleeding. The medical attendant’s concluded that she had suffered a severe tear on the vagina consistent with defilement, performed vagina repair surgery and admitted her for three (3) days. PW5 Mwangolo Chigulu a senior clinician at the hospital produced a P3 Form (exhibit 13), PRCF (exhibit 12), treatment notes (exhibit 14) discharge summary (exhibit 11) as evidence before the court.
5. On 2 April 2022 while PW1 was undergoing treatment, PW3, the complainant ‘s father reported the incident to Mariakani police station whereupon PW4, PC Denis Yeri went to scene of crime, conducted investigations, recovered bloody clothing and sheets from the complainant’s home which were produced in evidence before the trial court as exhibits. He thereafter apprehended the appellant who was identified by PW3 after being informed the appellant was a neighbour of the complainant and charged him with the offence after confirming the complainant was a child through her health card produced as exhibit 1.
6. The appellant was placed on his defence where he elected to give a sworn testimony as well as call one witness, DW2. He denied the charges and testified that on 1 April 2022, he was in the company of Musili Mwema DW2 and that when the complainant , who used to go to his house to watch television , went to his house at around 5pm, she found him in the company of DW2. He further testified that at no point was he left alone with the complainant on the material day.
7. DW2’s evidence was that on the material day he was with the appellant from 0900 am until 5pm when they both left to go to the market to take coffee after which they went back to the appellant’s house at 10pm and he left. He also testified that on the material day, the complainant never went to the appellant’s house at any time. He concluded that the allegations were false and the case was fabricated implicate the appellant.
8. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted him and sentencing him to 8 years imprisonment. Aggrieved, the appellant filed the present appeal where he raised the following grounds:
i. The trial court erred in both law and fact by conviction the appellant despite the fact that the prosecution had not proved its case beyond reasonable doubt.
ii. The trial court erred in both fact and law by relying on the health clinic card as evidence of age despite the document lacking credibility.
iii. The trial court erred in both fact and law by rejecting the defence of alibi without cogent reason.
iv. The trial court erred in both law and fact by dismissing the appellant’s defence and submissions.
v. The trial court erred in both law and fact by issuing a sentence that is harsh and excessive.
9. The respondent opposed the appeal and filed a notice of cross appeal dated 12 May 2026 in which it contended that the sentence of 8 years imprisonment imposed by the trial court should be reversed and enhanced to 20 years imprisonment.
10. At the hearing of the appeal, both parties filed written submissions which they relied on. The appellant was represented by Mr Jimmy Kiseu learned counsel while the respondent was represented by Miss Ngina Mutua learned counsel.
11. The appellant submitted that the essential elements constituting the offence of defilement were set out in the case of George Opondo vs Republic (2016) eKLR being proof of age, penetration and positive identification of the appellant as the perpetrator. On age, it was submitted on behalf of the appellant that the trial court erred by placing reliance of the health card as proof of age. That the card indicates the mother as Cecilia Nyangau whereas PW2 is called Dana Katana. It was further contended that the prosecution ought to have produced the appellant birth certificate being the primary document to prove age. Reliance was placed in the case of Edwin Nyambogo Onsongo vs Republic (2016) eKLR in support thereof.
12. On identification, the appellant submitted that the trial court erred by relying on inconsistent and shaky testimony of the complainant. It was argued that the complainant did not mention that she was threatened by the appellant to advance the narrative of menses in relation to her bleeding. It was contended that she was threatened by her to advance that argument. It was also contented that the trial court did not satisfy itself that Section 124 of the Evidence Act was complied with before placing reliance of the complainant’s testimony. The case of Wayu Omar Dololo vs Republic (2014) eKLR was cited in support.
13. On penetration, it was submitted that the clinical officer, PW5 admitted that he was not the author of the treatment notes,did not attend to the complainant or indicate when the incident occurred. That the finding of a missing hymen cannot be proof of defilement and that the trial court erred in relying on the medical evidence as proof of penetration.He contented that the prosecution had not proved its case beyond reasonable doubt and urged the court to quash the conviction and sentence.
14. The respondent opposed the appeal and submitted that the first appellate court has a duty to re-evaluate and examine the evidence so as to arrive at its own conclusion on whether or not to support the findings of the trial court. The cases of Okeno Vs Republic [1972] EA 32, O iruri Mose Vs Republic (2013) eKLR were cited in support thereof.
15. It was argued that there were no discrepancies in the evidence adduced by all five prosecution witnesses who gave cogent, consistent and corroborative evidence that was overwhelming against the appellant.
16. It was further submitted that all ingredients of the offence were duly proved with age being proved by the child health card (exhibit 1) which showed that the complainant was 13 years old, penetration was proved by the complainant’s evidence and corroborated by PW5 evidence as well as the P3 form, PRC form, discharge summary and treatment notes (exhibits 13,12,13 and 14 respectively). As regards identity of the perpetrator, it was submitted that PW1 recognized and positively identified the appellant as the perpetrator. Anjononi & another vs Republic (1980) KLR 59 was cited to buttress the point.
17. On the defence of alibi, it was submitted that the trial court duly considered it and found it to lack credibility due to the fact that it was raised at the defence stage, was not substantiated and could not dislodge the overwhelming and watertight evidence against the appellant. This court was urged to find uphold the conviction and dismiss the appeal.
18. The respondent argued the cross appeal where it contended that section 8 (3) of the Sexual Offences Act prescribed a mandatory minimum sentence of 20 years in cases where the victim is a child between age 12 to 15 years. That the victim in this case was 13 years and the sentence of 8 years imposed by the trial court was unlawful. Reliance was placed on Supreme court case of Francis Muruatetu & Another Vs Republic; Katiba Institute & 5 Others (Amicus Curiae) (2021) eKLR where the court held that the decision in Muruatetu did not invalidate mandatory sentences or minimum sentences in the Penal Code , the Sexual Offences Act or any other statute.
19. It was submitted that this court has power to increase the sentence by dint of Section 354 (3) (b) of the Criminal Procedure Code . The respondent urged the court to set aside the sentence of 8 years imprisonment and substitute it with a sentence of 20 years imprisonment. The appellant did not file any submissions against the cross appeal despite notice.
Analysis and determination
20. This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno Vs Republic [1972] EA 32, O iruri Mose Vs Republic (2013) eKLR.
21. The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
22. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(2)……………
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
23. The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic , Criminal Appeal No. 72 of 2013, George Opondo Olunga Vs Republic (2016) eKLR.
24. Having considered the record of proceedings before the trial court, judgement by the trial court, petition of appeal, notice of cross appeal by the respondent, the parties rival submissions the court narrows down the issues for determination are as follows: -
i. Whether there was proof of penetration.
ii. Whether there was proof of age of the victim.
iii. Whether there was positive identification of the perpetrator.
iv. Whether the sentence should be enhanced.
Whether there was proof of penetration
25. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person .
26. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina of the victim, H.K.N.
27. PW1’s testified that she was at home on 1 April 2022 when at around 1600 hours while heading to the toilet which was outside their house but near the appellant’s house, she met the appellant who led her by hand to his house, undressed her after warning her not to scream and caused his penis to penetrate her vagina. Afterwards, s he bled profusely and was taken to Mariakani Sub-County hospital by PW2 and PW3 where she was treated and discharged but continued bleeding. She later confessed to PW2 that she had been defiled by the appellant who threatened her not to scream. Medical examinations and tests conducted on the same day at night confirmed that she had suffered a severe tear of her vagina leading to the conclusion that she had been defiled.
28. PW5 testified that PW1 went to the hospital on 1 April 2022 after experiencing heavy bleeding and her clothes were wet with blood. Re-examination established that there were blood clothes on the vagina, active bleeding, vaginal tear at 6 o’clock leading to a conclusion that the victim was defiled. He produced the P3 Form, Post Rape Care Form, discharge summary and treatment notes as exhibits 13, 12, 11 and 14 respectively to support his findings . The blood socked clothes worn by the c omplainant were also produced by PW4 as exhibit 2 to 10.
29. PW1 testimony was consistent, cogent and corroborated by PW2, PW3 and as well as medical evidence produced by PW5. The exhibits referred to above provided conclusive evidence of penetration which went beyond the finding that the hymen was broken.
30. The prosecution witnesses provided a consistent , clear and concise chronology of event that began from 4pm on the material day when incident started, 6pm when PW2 found PW1 bleeding, 11 pm when PW1 was re-examined at Mariakani hospital culminating in her admission for three (3) days. The appellant admitted that PW1 went to his house on the material day at 5pm giving further credence to the prosecution evidence.
31. The appellant challenged the evidence of PW5 as set out in paragraph 13 abov e. The record shows that the appellant represented by Mr kiseu learned counsel, did not object to PW5 testifying or challenged the production of any of the exhibits, which deprived the witness an opportunity to lay the basis for his testimony and production of the exhibits. The court finds that the exhibits were duly produced pursuant to Section 77 of the Evidence Act , the appellant's contention on this point lacks merit and that penetration as an ingredient was proved beyond reasonable doubt.
Whether there was proof of age of the victim
32. The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau Vs Republic (Criminal Appeal E003 of 2024 [2025] KEHC 42 (KLR).
33. Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi Vs Republic Criminal Appeal No. 21 Of 2015 [2017].
34. PW1, PW2 and PW3 testified that the complainant was 13 years old. PW2 produced the Child Health Card of PW1 which shows that she was born on 4 July 2008 meaning she was 13 years at 1 April 2022 when the offence was committed. However, the appellant challenged the authenticity of the Child Health Card (exhibit 1) on grounds that it bears different name as that of the mother PW2.
35. The court has examined exhibit 1 and finds that it bears the complainant’s name as well as the second name of the father, PW3. The court finds that despite the variance, the exhibit is authentic as it bears the name of PW1. Besides, the evidence of PW1, PW2 and PW3 even without exhibit 1, is sufficient to prove the age of the complainant. As pointed out in Thomas Mwambu Wenyi Vs Republic (Supra) age can be proved in various ways including the victim’s parents testimony such as PW2’s, victim’s testimony or even through general observation. It is not confined to birth certificate or child health card. The court is satisfied that the age of the complainant was proved beyond reasonable doubt.
Whether there was positive identification of the perpetrator
36. PW1 identified the appellant as the person who defiled her. He was well known to her as he was the caretaker of the plot where the complainant lived. The appellant also confirmed knowing the complainant who usually goes to watch television in his house. He further testified that on the material day, the complainant went to his house at 5pm. PW4 confirmed that the appellant was arrested at the plot where the crime is said to have occurred in his house.
37. The court of appeal in the case of Anjononi & another vs R epublic (1980) KLR 59 , held that recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another. PW1 clearly recognized and identified the appellant as the assailant and perpetrator of the offence.
38. The appellant in his petition of appeal raised the defence of alibi contending that the trial court erred by rejecting the defence of alibi without cogent reason. No submissions were made on this point. However, t he appellant in his defence stated that he was with DW2 his house on the material day including 5pm when the complainant went to his house but denied being alone with her at any time. DW2 on the other hand testified that he was with the appellant from 9 am until 5pm when he left with the appellant for the market where they both stayed until 10pm.
39. The court of appeal in Erick Otieno Meda vs R (2019) eKLR had this to say on the defence of alibi raised by the accused persons;
a) An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.
b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.
d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.
40. The record shows that the appellant did not raise the defence of alibi at any stage before he was placed on the defence. This denied the prosecution witnesses an opportunity to rebut it. Secondly, there was material contradiction in the evidence by the appellant who testified that the complainant was at his house at 5pm whereas DW2 was categorical that the complainant never went to the appellant’s house. He also did not mention that there were two other people in the house at 5pm, that is, Elena and Pamela whom the appellant said were present when the complainant visited. The material contradictions lead the court to a conclusion that neither of the two defence witnesses is credible.
41. The prosecution presented a strong case that leaves no doubt that the appellant is guilty as charged. The evidence adduced against appellant was cogent, consistent and corroborative and the court finds that the prosecution proved its case beyond reasonable doubt. The conviction by the trial court is thus upheld.
Whether the sentence should be enhanced
42. Turning to the sentence, the respondent filed a notice of cross appeal where it was contended that the punishment of 8 years imprisonment was illegal and should be enhanced to 20 years imprisonment in view of the provisions of Section 8 (3) of the Sexual Offence Act.
43. Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some material factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” The sentence by the trial court was lawful and this court finds no reason to interfere with it.
44. An appellate court will only interfere with a sentence if it is established that the trial court overlooked some material factors or took into account some wrong material or was based on a wrong principle. The trial court held as follows concerning the sentence;
“Upon considering the matters in mitigation as well as the Victim Impact Assessment Report stated by the Probation Officer in open court. I have considered the aggravating factors herein. The victim was a minor aged 13 years 9 months old at the time the offence took place. I have also noted the Victim Impact Assessment which has stated that the victim has been affected by the ordeal and she remains withdrawn.
The minimum sentence provided by Section 8 (3) of the Sexual Offences Act is 20 years imprisonment. Considering the severity of the offence and further considering the latest Court of Appeal decision in Criminal Appeal No. 22 of 2018 where the learned Judges of Appeal stated that “we come to the considered conclusion that life imprisonment in Kenya dose not mean the natural life of the convict and we instead hold that life imprisonment translates to 30 years imprisonment and further considering other Judicial decisions of the Superior Court which recognize that minimum sentences take away judicial discretion”, a minimum sentence of 20 years in this case would come close to life sentence as stated. I have further considered that the accused is a first offender and I hereby sentence him to 8 years imprisonment”.
45. There is no doubt that the trial court proceeded on a wrong principle of the law on the subject matter. Mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Othrs (2021) eKLR and Supreme Court of Kenya in Petition No. E018 of 2013 R vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) where the Supreme Court held that mandatory minimum sentences under the Penal Code, Sexual Offences Act or any other law are lawful.
46. The trial court erred and misdirected itself when it wrongly assumed discretion to award a sentence below the mandatory minimum of 20 years. The discretion on section 8 (3) of the said Act would only relate to sentences above 20 years.
47. Section 354 (3) (b) of the Criminal Procedure Code empowers the High Court in an appeal against the sentence , to increase or reduce the sentence or alter the nature of the sentence. The respondent sought enhancement of the sentence through the cross appeal dated 12 May 2026. The court finds the sentence by the trial court of 8 years imprisonment unlawful.
48. The upshot is that the appeal against conviction is dismissed and the conviction by the trial court upheld. The cross appeal by the respondent is allowed. The sentence of 8 years imprisonment is set aside and substituted with a sentence of 20 years imprisonment to run from the date of conviction by the trial court.
Dated, signed and delivered virtually at Nairobi this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE